Social Security disability approvals decline

Attorney John Bednarz thought he had a clear cut case to win Social Security disability benefits for his client.

The 39-year-old Wilkes-Barre man had Huntington's disease, a debilitating and often fatal disorder that caused tremors in his hands, left him off-balance and suffering from frequent bouts of confusion.

An employee at the Social Security Administration didn't see it that way, however, and denied the initial claim. Bednarz appealed the case to an administrative law judge, who upheld the decision.

Ultimately his client prevailed after Bednarz filed an appeal in federal court. It was a long struggle that took far more time than it should have, he said.

"This case is one that really got me," Bednarz said. "He had a degenerative neurological impairment. He had involuntary movement in his right hand and symptoms of dementia. â¦ A diagnosis like this is essentially a death sentence."

His client is not alone in his struggle.

Administrative law judges who hear cases for the Social Security Administration's Office of Disability Adjudication and Review (ODAR) have become more selective in the cases they approve, data shows, forcing an increasing number of claimants to file suit in federal court.

In the Wilkes-Barre office of ODAR, the percentage of cases approved has steadily declined the past three years, mirroring a nationwide trend.

In fiscal year 2010, the office granted 64 percent of the cases. That dropped to 54 percent in 2011, 48 percent in 2012 and 47 percent in 2013, according to data compiled by Social Security. Statewide, 42 percent of cases were approved at the administrative law judge level in 2013.

The increase in denials has led to a huge spike in appeals filed in federal court for the Middle District of Pennsylvania, a review of the court docket shows. As of Nov. 22, 204 appeals were filed, compared to 117 in all of 2012, a 74 percent increase. That compares to 90 appeals in 2011 and 113 in 2010.

Officials with Social Security say the higher denial rate is partly attributable to an increase in filings due to the poor economy, which historically leads more people with marginal disabilities to seek benefits.

Several attorneys who represent claimants agree economic factors may have played a role. But they're concerned the system has become increasingly stacked against claimants due, in part, to the agency's propensity to hire judges who formerly worked for Social Security. There is also concern judges are being subjected to outside pressure that may make them more prone to deny cases.

"I'm not saying everyone is perfectly honest and that there is not fraud, but we see a lot of cases being denied that appear legitimate," said Steven Rollins, a Harrisburg attorney who specializes in disability claims. "You have more of a shift of judges who have become more in tune to affirm a denial and are less willing to grant cases."

In 2013, the Social Security Disability system paid 8.9 million workers an average monthly benefit of $1,129 at a total cost of $10 billion, according to the agency. To qualify, claimants must prove they are unable to engage "any substantial gainful activity" due to a mental or physical impairment which has lasted 12 months, is expected last 12 months or will result in death.

The initial determination is made based solely on a review of medical records, attorneys said. Roughly 25 to 35 percent of claimants are approved at that level, Rollins said. If denied, the case goes before an administrative law judge - an attorney hired through Social Security to conduct an independent review. The judge can hold a hearing that includes testimony from the claimant and physicians.

The are currently 1,500 administrative law judges in the nation. In Pennsylvania, judges preside in Wilkes-Barre, Harrisburg and Philadelphia.

If the administrative law judge denies the claim, it goes to the Appeals Council within Social Security. The final step is federal court. A judge will review the entire record and has the power to award benefits or return the case to the administrative law judge for further review.

There are no national statics on the percentage of cases remanded. A review of the federal court docket in the Middle District of Pennsylvania shows that of the 90 appeals filed in 2011, the last year for which full data is available, 56 were either affirmed, dismissed or withdrawn by the plaintiffs. Most of the cases filed in 2012 and 2013 remain pending.

Mark Hinkle, a spokesman for Social Security, said there is always a debate over whether the agency approves or disapproves too many cases. The agency does not seek to influence administrative law judges, who have complete independence.

"Our judges have qualified decisional independence to enhance public confidence in the fairness of our process, to protect people applying for disability, and to ensure that they issue decisions free from pressure to reach a particular result," he said in an email.

As for the overall decline in approval rates, Hinkle said the agency believes several factors have played a role.

"We have seen an increase in the number of disability cases based on the aging of the baby boom generation and the economy, and when this occurs it is expected that the approval rate will decrease when the number of applications increase," Hinkle said.

Jonathan Stein, an attorney with Community Legal Services in Philadelphia, said he believes the decrease in administrative law judge approvals is partly tied to a change in the make up of judges hired to review the cases.

Under pressure to speed up review of cases, the Social Security Administration hired an additional 500 administrative law judges within the past three years. Stein said. A large percentage of those attorneys previously worked for the agency, Stein said.

Administrative law judges are supposed to issue rulings based solely on the evidence. Stein said he can't help but question whether their experience with the agency may influence how they view cases.

"When you are a judge you must be independent. You follow Social Security rules and have to make independent decisions," he said. "The reality is, when you spent most of your life in the system, it will shape your views."

Charles Hall, an attorney from North Carolina who writes a blog about Social Security issues, said there is also concern that the changing political climate toward entitlement programs and media stories that have focused on judges who have high approval ratings may be unduly influencing judges.

"There is a great deal of public sympathy for people who are sick or disabled. â¦ On the other side here are people who say (recipients) are lazy bums who ought to get back to work," Hall said. "Judges are human beings. The same things that affect the rest of us affects them."

Hall said social security may have unintentionally influenced administrative law judges by publicly posting data on the percentage of cases they approve. If a judge's ruling are out of whack with others within his or her region, that could play on their minds, he said.

The data, which is available on Social Security's website, shows approval rates vary significantly among judges. In Pennsylvania, Judge Craig De Bernardis in Wilkes-Barre and Judge Christopher Bridges in Harrisburg had some of the highest approval rates between 2010 and 2013, data shows. De Bernardis approved 97 percent of his cases in 2010 and 96 percent in 2011, the two years he served. Bridges' approval rating varied from 90 to 96 percent between 2010 and 2013.

The highest approval rating in the Wilkes-Barre office in 2013 belonged to Judge Eugene Brady, who approved 56 percent of cases. On the other end of the spectrum are Judge Michelle Wolfe, who approved 34 percent of the cases, and Judge Therese Hardiman, who approved 38 percent of her cases.

Several judges in Wilkes-Barre also saw significant drops in their approval percentages since 2010. The most notable change is Hardiman. In 2010, she approved 73 percent of the cases she heard. That dropped to just 38 percent in 2013. Attempts to reach Hardiman for comment were unsuccessful.

Rollins said he's also concerned news media stories that focused on abuses within the system and judges who award a high percentage of cases may influence decisions.

He noted coverage of a recent Senate investigation that raised questions of whether a West Virginia judge had colluded with an attorney to approve an inordinate number of the attorney's cases. The investigation, led by Sen. Tom Coburn of Oklahoma, revealed Judge David Daugherty, who no longer hears cases, approved 1,375 of cases filed by attorney Eric Conn, denying only four.

"Judges are not immune to publicity," Rollins said. "I suspect if I'm in their position, I'm looking over my shoulder if others are being investigated and I'm seeing stories about too many allowances."

While they have concerns about the system, Rollins stressed he believes the majority of judges try to be fair. The cases they review are rarely clear cut, he said, and require analysis of hundreds of pages of medical records.

"I think, by and large, they do the right thing," Rollins said.

Bednarz, the attorney for the Wilkes-Barre man with Huntington's disease, said he also feels most judges do the best they can. He fears legitimate cases are being lost, however, because many claimants don't have attorneys to represent them.

Attorneys are only paid in disability cases if they obtain benefits for their client. Because the cases are so difficult, attorneys have become increasingly selective about which cases they will take, he said. That means some marginal cases that may have merit fall by the wayside.

"It is much more difficult than it has ever been being a social security practitioner," he said.

tbesecker@timesshamrock.com

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